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Friday, April 24, 2015

Once it is held that the Raj Singh and others were the aggressors and that the incident had taken place in the house of the complainant and not at the house of the said appellants as alleged by them, there is no room for the appellants to claim the benefit of Exception 2 to Section 300 of the Code. That is so particularly when neither deceased-Girdhari Lal nor others examined as prosecution witnesses supporting the complainant’s case were armed. The question whether the appellants exceeded the right of private defence does not, therefore, really arise for consideration. Since no such right was, in the facts and circumstances of the case, available to them, there was no question of their exceeding the same.

Leave granted.
2. These appeals by way of Special Leave arise out of the common
judgment dated 30.01.2013, passed by the Punjab and Haryana High Court in
Criminal Appeal No.D-440-DB of 2008 & Criminal Revision No.2758 of
2008, by which, the High Court dismissed the Criminal Appeal of the
appellant-Raj Singh and partly allowed the Criminal Revision qua Raj Singh
filed by Bharat Singh and thereby converting the conviction of the
appellant under Section 304 Part 1 IPC to Section 302 IPC and maintained
sentence of life imprisonment imposed on him and dismissed the revision qua
Rishi Pal and Rajpal.
3. Brief facts which led to the filing of these appeals are as
follows: The complainant-Bharat Singh serves in the Army and on
23.11.2004, he came to his village for fifteen days holidays. They are
three brothers, Girdhari Lal, Devender Singh and Bharat Singh. In his
complaint, Bharat Singh alleged that on 3.12.2004 at about 6.00 pm, when he
was standing at the main gate of his cousin’s house with one Tilak Raj,
Rishipal-brother of the appellant came there with an axe in his hand and
there was wordy altercation. Rishipal assaulted the complainant-Bharat
Singh with a Kulhari on his left buttock, however, Bharat Singh managed to
save his life, and rushed towards his home. The complainant narrated the
whole incident to his brother Devender Singh and he was taken to the
hospital wherein Dr. Gobind Singh at village Badshahpur treated him and
thereafter both the brothers returned to the village. When the elder
brother Girdhari returned home at about 8.30 P.M., Bharat Singh narrated
the whole incident to him and he was rebuked by his elder brother.
4. While the complainant and others were talking to each other at
the main gate, the appellant-Raj Singh, armed with licensed pistol, Rishi,
armed with countrymade pistol, Rajendra and Ram Pal, armed with lathies
came to the house of Girdhari Lal and attacked Bharat Singh and others.
Appellant-Raj Singh fired shot at Girdhari’s chest from his pistol and
Girdhari fell down on the ground. When Bharat Singh raised alarm,
appellant fired at Bharat Singh which hit his left back side below the
shoulders. As Bharat Singh raised alarm, Mahabir Singh and his elder
brother Gajraj-PW6 rushed to the spot. Mahabir tried to lift Girdhari in
order to save him, at that time, Rishi again fired from the countrymade
pistol on Mahabir Singh and Gajraj. Further Rajender and Rampal assaulted
Gajraj with lathis. Girdhari was immediately taken to Government Hospital,
Gurgaon for treatment where the doctor declared him as “brought dead”.
Injured persons Mahabir, Gajraj-PW6 and Bharat Singh-PW1 were given
treatment. On receipt of ruqqa from the Government Hospital, Gurgaon, PW13-
Rajender Singh (ASI) recorded the statement of PW1–Bharat Singh and
registered the case in FIR No.321/2004 under Section 302 IPC. On completion
of investigation, chargesheet was filed under Sections 323, 324, 302, 307
and 506 read with Section 34 IPC.
5. To bring home the guilt of the accused, prosecution examined as
many as thirteen witnesses and accused have examined three defence
witnesses. The Additional Sessions Judge, Fast Track Court, Gurgaon vide
judgment dated 17.05.2008 held that the appellant-Raj Singh had exceeded
the right of private defence and convicted the appellant-Raj Singh under
Section 304 Part-1 IPC and acquitted Rajpal and Rishi Pal. The ASJ Vide
separate order dated 20.05.2008, sentenced the appellant-Raj Singh to
undergo rigorous imprisonment for life and imposed a fine of Rs.7,000/-
with default clause.
6. Challenging the acquittal of Rishi Pal and Rajpal, Bharat Singh-
PW1 preferred Criminal Revision. Challenging his conviction, Raj Singh-
accused preferred Criminal Appeal before the High Court wherein the High
Court vide common judgment dated 30.01.2013 dismissed the Criminal Appeal
of the appellant-Raj Singh and allowed the Criminal Revision filed by the
complainant-Bharat Singh and thereby converted the conviction of the
appellant under Section 304 Part 1 IPC to Section 302 IPC and maintained
the sentence of life imprisonment imposed on him.
7. On the same day a cross case i.e. on 4.12.2004 in the same
police station was lodged by the appellant party against Mahabir Singh and
others and they were also charge sheeted. Vide separate judgment dated
17.05.2008, trial court held that complainant party namely, Mahabir Singh,
Bharat Singh, Gajraj, Anil and Satish are guilty of constituting unlawful
assembly and causing grievous injury with blunt weapon to Rishi Pal and
Rajpal and convicted them under Sections 148, 323, 325 and 452 IPC read
with Section 149 IPC and sentenced them to undergo various imprisonment
imposed on them. Being aggrieved, Bharat Singh, Mahabir and others
preferred appeal before High Court. Upon consideration of evidence and
material on record, High Court held that reasonable doubts arise as to the
prosecution version regarding scene of occurrence and the manner of attack
and held that death of Girdhari and injuries to the accused Mahabir Singh
and others were not properly explained which is fatal to the prosecution
case and thus acquitted Mahabir Singh, Bharat Singh and others.
8. Mr. Gurukrishna Kumar, learned Senior Counsel appearing for the
appellants contended that the place of occurrence was house of the
appellant which means that the complainant party (seven in number) came to
the house as aggressors and the appellant had no option but to fire from
his gun in self defence of his own and his brothers and the alleged act of
the appellant cannot in any manner be said to be in excess of right of
private defence. It was further submitted that the appellant had
specifically urged private defence which was accepted by the trial court
and erroneously rejected by the High Court. Learned Senior Counsel urged
that the High Court was not right in dissecting the statement of the
appellant under Section 313 Cr.P.C. by relying upon the inculpatory part of
it but declining to take into account his explanation as to how the firearm
shot occurred and the impugned judgment is unsustainable.
9. Per contra, learned counsel for the respondents contended that
no cogent evidence is on record to substantiate the argument that
complainant party were the aggressors. It was submitted that the occurrence
took place in the house of the complainant but the police helped the
appellant by changing the place of occurrence after three-four days of
occurrence. It was argued that the act of the appellant in firing gun
shots was not in exercise of right of private defence and the High Court
rightly reversed the judgment of the trial court and convicted the
appellant under Section 302 IPC.
10. We have carefully considered the rival submissions and perused
the evidence and material on record and the impugned judgment.
11. PW1-Bharat Singh had spoken about the occurrence in the evening
that he was attacked by the accused party with axe (kulhari) and PW1-Bharat
Singh narrated the same to his brothers Girdhari (deceased) and Anil
Kumar–PW5 who returned home at about 8.30 P.M. after attending a marriage
party. Girdhari rebuked Bharat Singh and when they were all talking in the
house of Girdhari, the appellant and his brother Rishi Pal and Rajpal came
to the house of Girdhari armed with deadly weapons. Appellant-Raj Singh
fired gun shots and Girdhari sustained firearm injury in his chest and he
fell down. Raj Singh fired at Bharat Singh-PW1 and injury was caused on
the backside of his shoulder. When Mahabir tried to lift Girdhari, at that
time Rishi Pal fired at Mahabir with countrymade pistol. Rajpal and
Rajendra are alleged to have given lathi blows on the person of Gajraj
Singh–PW6 and all the accused ran away, Girdhari was taken to hospital and
he was declared ‘brought dead’ by the doctor. PW1-Bharat Singh, PW5-Anil
Kumar and PW6-Gajraj have clearly spoken about the occurrence, they were
consistent in their version despite searching cross-examination and their
evidence is trustworthy. Further, evidence of eye-witnesses is
strengthened by the medical evidence.
12. To substantiate the defence plea that the complainant party are
the aggressors, much reliance is placed on the evidence of PW7-Dr.
Kulvinder Singh, Senior Scientific Officer who has stated that he visited
the place of occurrence–house of the accused as well as house of deceased
Girdhari on 7.12.2004. As per the site plan Ex.PG/I dead body was detected
at spot ‘A’ and that blood stains were detected on polythene sheet at plan
‘C’ and splashes of blood detected on dung cakes and one woolen monkey cap,
four empty cartridges and one live cartridge were recovered from the
courtyard of the house of the accused. PW7 specifically stated that no
blood stains or any other physical clues related to the occurrence could be
detected in the courtyard of the house of deceased-Girdhari.
13. Laying much emphasis upon the site plan prepared on 7.12.2004
and evidence of PW7, learned Senior Counsel for the appellant submitted
that PW7 is a government official and an independent witness who has no
reason to depose falsely in favour of the appellant and his statement has
been further corroborated by the evidence of the investigating officers
namely PW8-Kuldip Singh(SI) and PW13-Rajender Singh (ASI). Learned Senior
Counsel further submitted that the High Court erred in saying that there
was no explanation as to how the articles remained in the courtyard of the
house of the accused and were not recovered for four-five days, the High
Court has not properly appreciated the evidence of PW13 and erred in
reversing the findings of the trial court.
14. It is to be noted PW8-Kuldeep Singh, Sub Inspector of Police
had deposed that on 4.12.2004, he along with DSP Sube Singh and other
police officials went to Girdhari’s house and recorded the statement of one
Rajkumar and others and spot inspection was also conducted as per their
version and according to him no site plan was prepared on 4.12.2004 as the
ladies of the house were weeping and everyone was disturbed. On 5.12.2004,
PW8-Kuldeep Singh (SI) prepared the site plan of the place of occurrence as
given in the F.I.R., but according to PW8, no physical evidence was
available at the spot on 5.12.2004. On 7.12.2004, a team of experts along
with PW13-Rajender Singh (ASI) inspected the house of the accused-Raj Singh
and Rajpal and recovered four empty cartridges, one live cartridge, monkey
cap and five pairs of hawai chappals and blood stains on polythene. It is
a matter of common knowledge that the above material objects recovered on
7.12.2004 could have been noticed with naked eyes. While so, it is quite
unnatural as to why the above material objects were not recovered on
4.12.2004 and 5.12.2004 inspite of the investigating team inspecting the
spot on those two days. It is in this backdrop, the evidence of PW7-Dr.
Kulvinder Singh and PW13-Rajender Singh (ASI) as to the alleged recovery on
7.12.2004 has to be examined.
15. PW13-ASI Rajender Singh has stated that he made enquiries from
some persons and he came to know that the actual place of occurrence is the
house of appellant and as such no person has been examined in the court to
show that the place of occurrence was the house of accused. In the site
plan prepared on 5.12.2004, the place of occurrence was shown as in front
of the house of Girdhari and not in the courtyard of the house of the
appellant. In their statement under Section 313 Cr.P.C., the accused have
stated that PW1–Bharat Singh and his brothers PW5-Anil Kumar, deceased-
Girdhari, joined together and went to the house of the accused and that the
place of occurrence is the house of the accused. As rightly observed by
the High Court, the accused have also not examined any witnesses to
substantiate their plea. Ignoring these material aspects, in our view, the
Sessions Judge was not right in holding that the place of occurrence was
the house of the accused and that the complainant party were the
aggressors. The approach of the learned Sessions Judge borders on
perversity and reasons for holding that the place of occurrence was the
house of the accused is factually unsustainable and the High Court rightly
set aside the findings of the trial court. We concur with the findings of
the High Court that the investigating officer had helped the appellant by
changing the place of occurrence to make it appear that the complainant
party were the aggressors.
16. Plea of self-defence: The contention of the appellant is that
he is not an aggressor and since the complainant party was in possession of
lethal weapons which caused reasonable apprehension in the mind of the
appellant as to the threat to his life and his two brothers and therefore
the appellant had no option but to fire from his gun and the alleged act of
the appellant cannot, in any manner, be said to be in excess of his right
of private defence.
17. The right of private defence is codified in Sections 96 to 106
IPC. Section 96 declares that “nothing is an offence which is done in
exercise of the right of the private defence”. Section 97 states that
every person has right of defence of person as well as of property.
Section 100 describes the situations in which the right of private defence
of body extends to the extent of voluntarily causing of death. To claim
right of private defence extending to voluntary causing of death, the
accused must show that there were circumstances giving rise to reasonable
grounds for apprehending that either death or grievous hurt would be
caused to him. The law of private defence does not require that the person
assaulted or facing apprehension of an assault must run away for safety.
It entitles him to defend himself and law gives him right of private
defence. There is no right of private defence where there is no
apprehension of danger. Necessity of averting and impending danger must be
present, real or apparent.
18. Elaborating the scope of right of private defence, in Dharam
And Ors. vs. State of Haryana, (2007) 15 SCC 241 in paragraphs (18) and
(19) it was held as under:-
“18. Thus, the basic principle underlying the doctrine of the right of
private defence is that when an individual or his property is faced with a
danger and immediate aid from the State machinery is not readily available,
that individual is entitled to protect himself and his property. That being
so, the necessary corollary is that the violence which the citizen
defending himself or his property is entitled to use must not be unduly
disproportionate to the injury which is sought to be averted or which is
reasonably apprehended and should not exceed its legitimate purpose. We
may, however, hasten to add that the means and the force a threatened
person adopts at the spur of the moment to ward off the danger and to save
himself or his property cannot be weighed in golden scales. It is neither
possible nor prudent to lay down abstract parameters which can be applied
to determine as to whether the means and force adopted by the threatened
person was proper or not. [pic]Answer to such a question depends upon a
host of factors like the prevailing circumstances at the spot, his feelings
at the relevant time, the confusion and the excitement depending on the
nature of assault on him, etc. Nonetheless, the exercise of the right of
private defence can never be vindictive or malicious. It would be repugnant
to the very concept of private defence.

19. It is trite that the burden of establishing the plea of self-defence is
on the accused but it is not as onerous as the one that lies on the
prosecution. While the prosecution is required to prove its case beyond
reasonable doubt, the accused need not establish the plea of self-defence
to the hilt and may discharge the wonus by showing preponderance of
probabilities in favour of that plea on the basis of the material on record
(see Munshi Ram v. Delhi Admn.(AIR 1968 SC 702), State of Gujarat v. Bai
Fatima((1975) 2 SCC 7) and Salim Zia v. State of U.P.(1979) 2 SCC 648).”

19. In the case of Bhanwar Singh & Ors. vs. State of M.P., (2008)
16 SCC 657, in paragraphs (50) and (60) it was held as under:-
“50. The plea of private defence has been brought up by the appellants. For
this plea to succeed in totality, it must be proved that there existed a
right to private defence in favour of the accused, and that this right
extended to causing death. Hence, if the court were to reject this plea,
there are two possible ways in which this may be done. On one hand, it may
be held that there existed a right to private defence of the body. However,
more harm than necessary was caused or, alternatively, this right did not
extend to causing death. Such a ruling may result in the application of
Section 300 Exception 2, which states that culpable homicide is not murder
if the offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to him by law and
causes the death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing more harm
than is necessary for the purpose of such defence. The other situation is
where, on appreciation of facts, the right of private defence is held not
to exist at all.

60. To put it pithily, the right of private defence is a defence right. It
is neither a right of aggression or of reprisal. There is no right of
private defence where there is no apprehension of danger. The right of
private defence is available only to one who is suddenly confronted with
the necessity of averting an impending danger not of self-creation.
Necessity must be present, real or apparent”. (emphasis added)

The same view is also expressed in the cases of Biran Singh vs. State of
Bihar, AIR 1975 SC 87, Wassan Singh vs. State of Punjab,(1996) 1 SCC 458,
Sekar alias Raja Sekharan vs. State represented by Inspector of Police,
T.N., (2002) 8 SCC 354, Buta Singh vs. State of Punjab, AIR 1991 SC 1316
and James Martin vs. State of Kerala, (2004) 2 SCC 203.
20. In the present case, plea of private defence has been put forth
by the appellant. To succeed in the plea of private defence, the appellant
has to prove that he exercised right of private defence in his favour and
this right extended to the extent of causing death. In the facts and
circumstances of the present case, let us consider whether right of private
defence was available to the accused. Case of the appellant is that
complainant party forcibly entered his house and started fighting and the
appellant had reasonable apprehension that he would be hurt and therefore
he fired the few shots in the air, and during the scuffle, the complainant
party tried to forcibly snatch pistol from him and fire was shot which
incidentally hit the deceased-Girdhari. Further case of the appellant is
that the complainant party armed with weapons were the aggressors and they
caused serious injuries to the appellant and his brothers Rishi Pal and
Rajpal.
21. DW2-Dr. Arun has expressed his opinion about the injuries
caused to Rishi Pal and stated that Rishi Pal sustained some bruises and
contusions and had pain in the left foot. DW2-Dr. Arun examined Rajpal who
was brought to the hospital and there was pain and swelling in the left
elbow, pain and swelling in the right wrist. DW1-Dr. Shailza Aggarwal
examined x-ray of Rishipal and found that there was fracture in the fifth
metatarsal of the left foot. DW1-Dr. Shailza Aggarwal also examined x-ray
of Raj Pal and found fracture of fifth metacarpal right hand. The injuries
on the person of the accused were not so serious.

22. Bharat Singh and his brothers were not carrying any arms or
deadly weapons. The accused-appellants if at all any right accrued in
their favour, while defending themselves, acted in a manner which is unduly
disproportionate to the injury which they would have sustained at the hands
of complainant party who were not armed with any deadly weapons. Thus,
their act of firing shots which resulted in death of Girdhari, was not at
all to prevent any injury which was sought to be averted or which could
have been reasonably apprehended. At no point of time, any reasonable
apprehension of death or grievous injury was perceivable, but the accused-
appellants aggressively acted and fired shots at deceased. Relying upon
the evidence of PW-5-Anil Kumar, High Court also recorded a finding that
appellant fired Girdhari from a short distance of four to five feet, even
when the complainant party was not armed with lethal weapons. Appellant
fired at Girdhari recklessly from a close range indicating that the
appellant-accused party were the aggressors. Law does not confer a right
of self-defence on a man when he himself was the aggressor. In the present
case, the complainant party were not armed with lethal weapons; but the
appellant was armed with a pistol. When the appellant and his party were
the aggressors firing several rounds of firearm, the High Court rightly
held that the plea of self defence raised by the accused is not
sustainable. We find no reason warranting interference with the conviction
of the appellant under Section 302 IPC and sentence of life imprisonment
imposed on him.

23. Criminal Appeal arising out of SLP (Crl.) No.10739/2013: So
far as acquittal of Rishi Pal and Rajpal is concerned, concurrent findings
were recorded by both the trial court as well as the High Court for
acquitting them. The appellate court would interfere with the order of
acquittal only when the court below ignores or overlooks important
circumstances and proved facts and misapplies the principles of criminal
jurisprudence or tries to gloss over them. In the case in hand, it cannot
be said that the reasonings recorded by the courts below for acquittal of
Rishipal and Raj Pal are unreasonable warranting interference in exercise
of jurisdiction under Article 136 of the Constitution of India and this
appeal is liable to be dismissed.

24. Criminal Appeal arising out of SLP (Crl.)
No.6347/2013: As mentioned above, on the same day i.e. 4.12.2004, a cross
case in the same police station (Police Station, Sohna) was registered
against the complainant party, namely, Mahabir, Satish, Bharat Singh,
Gajraj, Anil and Devender. According to the complainant-Raj Singh, on
3.12.2004, due to his illness he was in his house and at that time he heard
some abuse and when he reached the house of his brother Rajpal, he saw
Girdhari lying on the ground. He further stated that Mahabir, Gajaraj,
Anil, Devender, Bharat Singh and Satish son of Mahipal were present there
and Gajraj was armed with lathi, Mahabir was armed with country made
pistol, Anil was armed with pharsa, Devender and Lallu were having rods and
Bharat Singh was having countrymade pistol and Satish was having rod in
his hand and these persons caused injuries to his brothers Rajpal and Rishi
Pal. After completion of investigation, chargesheet was filed against
Mahabir and others in Sessions Case No. 3/2006. Vide separate order dated
17.5.2008, the Additional Sessions Judge, Fast Track Court, Gurgaon held
that respondent party namely Mahabir, Satish alias Lallu, Bharat Singh,
Gajraj, Anil are guilty of constituting unlawful assembly and causing
grievous injuries with blunt weapon and convicted them under Sections
148, 323, 325, 452 IPC read with Section 149 IPC. For conviction under
Section 325 IPC read with Section 149 IPC, trial court sentenced each of
them to undergo rigorous imprisonment for two years and fine of Rs.1500/-
each with default clause. For conviction under other offences they were
imposed various sentence of imprisonment and also fine. Sentence of
imprisonment imposed on each of them were ordered to run concurrently.
Giving benefit of doubt, Devender was acquitted of the charges. Challenging
the verdict of conviction, Mahabir and others filed Criminal Appeal
No.S-1062-SB/2008 before the High Court of Punjab and Haryana and the
High Court vide common order dated 30.01.2013 allowed the appeal of the
accused persons and the High Court acquitted them of all the charges.

25. As discussed earlier, place of occurrence was not the house of
Raj Singh or his brother’s house as is evident from the fact, objects were
not recovered immediately but recovered only after a gap of three-four days
and no credible explanation is forthcoming from PW8-Kuldeep Singh (SI) and
PW 13- Rajender Singh (ASI) for such delay. By perusal of the evidence on
record, it is clear neither any firearm was used by Bharat Singh and others
nor any such firearm was found in their possession. As far as injuries
sustained by Rishi Pal and Rajpal are concerned, Rajpal sustained lacerated
wound and fracture fifth of metacarpal and Rishi Pal sustained fracture of
fifth metatarsal. The doctors have opined that the said injuries are
possible by a fall. As discussed earlier, Mahabir and others were neither
the aggressors nor there was any pre-meditation to cause the said injuries.
Upon consideration of the facts and circumstances and the nature of
injuries caused, the High Court rightly held that the complainant party
(Mahabir and others) acted in private defence and acquitted them of the
charges. Considering the nature of injuries and other material on record,
in our view, the complainant party have not exceeded their right of private
defence and caused harm that was necessary for the purpose of private
defence. Upon appreciation of evidence, the High Court rightly acquitted
Mahabir and others and we find no reason to interfere with the same.

26. Criminal appeals arising out of S.L.P.(Crl.) Nos.5767-5768/13.
The conviction of the appellant-Raj Singh under Section 302 IPC and
sentence of life imprisonment imposed on him is confirmed and the appeals
preferred by Raj Singh are dismissed. Criminal appeals arising out of
S.L.P.(Crl.) Nos.6347/13 & 10739/13 filed by Raj Kumar and Bharat Singh
stand dismissed.

..………………….J.
(T.S. Thakur)

...………………….J.
(R. Banumathi)

.……………………J.
(Amitava Roy)
New Delhi;
April 23, 2015
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 701-702 OF 2015
(Arising out of S.L.P.(Crl.)Nos.5767-5768 of 2013)

Raj Singh …Appellant

Versus

State of Haryana etc. …Respondents
WITH

CRIMINAL APPEAL NO. 703 OF 2015
(Arising out of S.L.P.(Crl.)No.6347 of 2013)

Raj Kumar ...Appellant

Versus

Mahabir & Ors. ...Respondents

WITH

CRIMINAL APPEAL NO. 704 OF 2015
(Arising out of S.L.P.(Crl.)No.10739 of 2013)

Bharat Singh ...Appellant

Versus

Rishi Pal & Ors. ...Respondents

J U D G M E N T

T.S. THAKUR, J.

1. I have had the advantage of going through the order proposed by my
Esteemed Sister Banumathi, J. While I agree with the conclusion arrived at
by her, I would like to add a few lines of my own.

2. Exception 2 to Section 300 of the Indian Penal Code provides that
culpable homicide is not murder if the offender, in the exercise in good
faith of the right of private defence of person or property, exceeds the
power given to him by law and causes the death of the person against whom
he is exercising such right of defence without premeditation, and without
any intention of doing more harm than is necessary for the purpose of such
defence. Right of private defence is, in turn, recognised by Section 96 of
the Code which provides that nothing is an offence which is done in the
exercise of the right of private defence. Section 97 of the Code recognises
the private defence of the body and of property and reads as:

“97. Right of private defence of the body and of property. – Every person
has a right, subject to the restrictions contained in Section 99, to defend
–

First.- His own body, and the body of any other person, against any
offence affecting the human body.

Secondly.- The property, whether movable or immovable, of himself or of
any other person, against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal trespass, or which is an
attempt to commit theft, robbery, mischief or criminal trespass.”

3. Section 99 of the Code deals with acts against which there is no
right of private defence and, inter alia, provides that the right of
private defence in no case extends to the inflicting of more harm than it
is necessary to inflict for the purpose of defence. Section 100 of the Code
deals with situations in which the right of private defence of the body
extends to voluntarily causing death or of any other harm to the assailant,
if the offence which occasions the exercise of the right is one of the kind
enumerated under the said Section. The offences enumerated under the said
provision include offences like causing death, grievous hurt, committing
rape, gratifying unnatural lust and assault with the intention of
kidnapping or abducting. Section 103 of the Code similarly deals with the
right of private defence of property in situations enumerated thereunder,
which includes offences like robbery, house-breaking by night, mischief by
fire committed of any building, tent or vessel used as a human dwelling
etc.

4. A conjoint reading of provisions of Sections 96 to 103 and Exception
2 to Section 300 of the Code leaves no manner of doubt that culpable
homicide is not murder if the offender, in the exercise in good faith of
the right of private defence of person or property, exceeds the power given
to him by law and causes the death of the person against whom he is
exercising such right of defence, provided that such right is exercised
without premeditation and without any intention of doing more harm than is
necessary for the purpose of such defence. A fortiori in cases where an
accused sets up right of private defence, the first and the foremost
question that would fall for determination by the Court would be whether
the accused had the right of private defence in the situation in which
death or other harm was caused by him. If the answer to that question is
in the negative, Exception 2 to Section 300 of the Code would be of no
assistance. Exception 2 presupposes that the offender had the right of
private defence of person or property but he had exceeded such right by
causing death. It is only in case answer to the first question is in the
affirmative viz. that the offender had the right of defence of person or
property, that the next question viz. whether he had exercised that right
in good faith and without premeditation and without any intention of doing
more harm that was necessary for the purpose of such defence would arise.
Should answer to any one of these questions be in the negative, the
offender will not be entitled to the benefit of Exception 2 to Section 300
of the Code. Absence of good faith in the exercise of the right of private
defence, premeditation for the exercise of such right and acts done with
the intention of causing more harm than is necessary for the purpose of
such defence would deny to the offender the benefit of Exception 2 to
Section 300. The legal position on the subject is fairly well settled by a
long line of decisions of this Court to which copious reference has been
made by Banumathi, J. No useful purpose would, therefore, be served by
referring to them over again. All that need be said is that whether or not
a right of private defence of person or property was available to the
offender is the very first question that must be addressed in a case of the
present kind while determining the nature of the offence committed by the
accused, whether or not a right of private defence was available to an
offender is, in turn, a question of fact or atleast a mixed question of law
and fact to be determined in the facts and circumstances of each individual
case that may come up before the court.

5. The High Court has, in the case at hand, clearly recorded a finding
that the appellants were the aggressors in the incident that led to the
death of deceased-Girdhari Lal. Banumathi, J. has in the proposed order
referred to the evidence supporting that finding. Once it is held that theRaj Singh and others were the aggressors and that the incident had takenplace in the house of the complainant and not at the house of the saidappellants as alleged by them, there is no room for the appellants to claimthe benefit of Exception 2 to Section 300 of the Code. That is soparticularly when neither deceased-Girdhari Lal nor others examined asprosecution witnesses supporting the complainant’s case were armed. Thequestion whether the appellants exceeded the right of private defence doesnot, therefore, really arise for consideration. Since no such right was, inthe facts and circumstances of the case, available to them, there was noquestion of their exceeding the same.

6. With the above words, I concur with the order proposed by my esteemed
sister.